An Email from the Realtors Association–and Our Response

Recently a realtor friend passed on this email to us. It’s true that not all realtors support the extreme anti-tenant position taken by the Arkansas Realtors Association. We have realtor friends who agree that Arkansas law is the most anti-tenant law in the United States. You may hear that the legislation proposed this session will correct this. It won’t. And we predict it will make life harder for landlords as well, because as it stands now, under the new failure to vacate statute a judge can’t even order a tenant to leave.

In the near future, we’ll write something for landlords. But for now, here is an email sent to all members of the Arkansas Realtors Association, the most powerful opponent of fair landlord-tenant laws in Arkansas. On Feb. 1 at the House committee hearing on SB 25, their counsel testified. Their lobbyist testified before the Senate committee last week. Our guess is they’ve spend thousands of dollars to deny tenants rights they have in every other state. Why? It’s a good question.

Word for word, this is the email in bold type. We’ve numbered the points. Our responses are in italics. Do you know any realtors? Are you a realtor yourself? Is your Association being candid about the state of the law, and what it is doing with your dues?

  1. The current single remedy eviction results from a Pulaski County court decision declaring a decades old statute unconstitutional.

Three circuit courts including Pulaski County have declared the failure to vacate statute, sought to be amended by SB 25, unconstitutional. Two have declared the entire statute to be unconstitutional, and one of the two held that it was unconstitutional in five different ways. In addition, more than 1/3 of state courts refuse to hear failure to vacate procedures. SB 25 seeks to amend this seriously flawed statute. A simplified civil remedy that is fair to both landlords and tenants makes sense over trying to revive and antiquated criminal statute that may still not pass judicial review and will leave landlords without a the best remedy for evicting violating tenants.

  1. Currently, landlords who have properties occupied by tenants that refuse to pay rent have only one available remedy, the civil eviction process.

The available civil process is the unlawful detainer statute, although some counties hear yet a third type of eviction case, found at Ark. Code Ann. 18-17-901 et seq. District courts do not have jurisdiction to hear this third type of case. Yet they continue to be heard. The point is, eviction law across the state of Arkansas is a mess. A streamlined civil procedure, fair to both landlords and tenants, is the only way to fix this. 

  1. These civil eviction actions must be filed in Circuit court, which have base filings fees of $150.00 per case, plus additional fees for service of process in most cases.

The base fee is actually $165 ($185 if an attorney is filing) and$35-$50 for service of process.

  1. Additionally, these civil eviction cases require some landlords to hire an attorney, an additional expense that will ultimately increase the cost of housing in Arkansas.

Correct. However, clogging the criminal justice system with landlord-tenant cases also inflicts a cost on taxpayers, and takes valuable time of prosecutors and judges who otherwise would be dealing with real crimes.

  1. Tenants who are in violation of the terms of their lease will have a civil judgment entered against them, and could have their wages and bank accounts garnished as a result of the action.

In fact, most tenants move out when the original notice is served, and so none of these outcomes come to pass. Most tenants are so poor that none of these outcomes would affect them in any meaningful way. And most landlords don’t pursue further measures anyway, once a tenant has left. But a criminal verdict can affect a tenant much more seriously. Failure to pay a criminal fine (which is what they would receive under SB 25) may lead to additional fines, court costs and restitution, and jail time. Criminal convictions may stay on a tenant’s record. 

  1. The municipal eviction process is much easier on both landlords and tenants. It is less costly and does not result in a civil judgment on the tenant’s record or the garnishment of their bank accounts and wages.  Most of the time, once the tenant is notified of the municipal eviction commencement suit they simply move out and the process stops, much easier on all parties.

First, let’s call this by its true name. It is a criminal procedure. Failure to pay rent on time by even one day, even only once, robs a tenant of her rental property—her place to live. She must move, and if the landlord gives her notice and she doesn’t, it’s a violation offense. A tenant who fails to make a criminal court date can be charged with Failure to Appear and be arrested. And the last sentence is misleading, because most of the time under the unlawful detainer statute, once the tenant is notified she simply moves out and the process stops.

 Why subject tenants to criminal charges, when no other state does this? Why rob the tenant of her place to live for one late rent payment? Nothing in the failure to vacate statute requires the landlord to accept a rent payment, even if it’s only one day late. There’s no “opportunity to cure” the breach of the lease.

The realtors’ explanation above, and the failure to vacate statute, assume the tenant is guilty. But to be fair and balanced, the law must protect the few tenants who are being taken advantage of by their landlord in the same way the law should protect landlords whose tenants who are taking advantage of them.

  1. Many landlords use their rental houses as a source of income. Failure to pay rent coupled with failure to vacate robs the landlord of his property.

This is true in every other state and yet in those states these actions are treated as a civil offense, breach of a lease, requiring a landlord to go to court to get a civil order requiring the tenant to leave. It is not “theft,” any more than paying a mortgage payment late is theft. Landlords should be encouraged to do a better job vetting tenants.  When the state is expected to pay for the cost of eviction, this provides landlords with no incentive to rent to responsible tenants.

Some landlords abuse the failure to vacate statute.  The way the process is set up, even if tenants are current on rent payments, or if the landlord has also violated the terms of the lease, the tenant does not get a chance to be heard.  

  1. It is in the best interests of the people of the State of Arkansas for property owners to continue to have remedies against tenants who fail to pay rent for a dwelling house or other building but refuse to surrender possession of the dwelling house or other building.

True, and the people already have a civil remedy (like every other state) in the unlawful detainer statute. Work is also in progress on a streamlined procedure that landlords and tenants can use without attorney assistance. It is not in the best interest of Arkansans to have a law that favors one group of people over another and treats tenants as though they are criminals.  The people of Arkansas deserve a law that gives everyone equal access to the courts an equal opportunity to present their case.  A law that treats breaching a civil contract as a crime does not do that. 

  1. Again, it is the intent of this legislation to amend Arkansas Code 18-16-101 so that the language is exactly the same as was previously in effect when 18-16-101 was upheld as constitutional in decision of the United States Circuit Court of Appeals, in Munson v. Gilliam, and the decision of the Arkansas Supreme Court in Duhon v. State.

Even if the law is passed and is taken back to the pre-2001 amendments, there is no guarantee that it will be found to be constitutional.  The law has evolved since the previous cases (Duhon and Munson) were decided. Munson did not hold the failure to vacate statute constitutional; it simply struck down an injunction. Duhon’s holding is based on different key facts. Failure to vacate cases are not tried the same way today in most courts.